During an omnibus hearing Tuesday in Kandiyohi County District Court, Spilseth denied the change of venue motion, but then took under advisement a number of other motions filed and argued by Wickenhauser’s attorney, Lynne Torgerson.

The charges, plus a misdemeanor charge for open bottle, were filed after the three family members were killed in the head-on crash around 9 p.m. Aug. 17 near where U.S. Highway 12 intersects with County Road 127. Hoffman’s 5-year-old son, Jason, was injured.

Torgerson argued that pretrial publicity by local media outlets, including the West Central Tribune, constituted “extensive” publicity. Assistant County Attorney John Kallestad argued that Torgerson had not shown that a jury could not be found among county residents. Spilseth ultimately denied the motion Tuesday to move the trial outside the county.

Arguing her motion to suppress the evidence gathered from the blood test of her client, Torgerson argued that there was no probable cause for the test. She argued that State Patrol Trooper Dennis Koenen, who testified Tuesday at the hearing and investigated the crash, did not have Wickenhauser submit to any field sobriety tests other than a preliminary breath test that showed a 0.07 percent blood-alcohol content. The legal limit for driving while impaired charges is 0.08 percent.

“Mr. Wickenhauser passed the only field sobriety test he was given. His result was 0.07,” she said. “There was no evidence that he was under the influence of alcohol.”

Torgerson said she has the results of three blood tests performed on Wickenhauser — a blood serum test, a test by an independent testing agency and the preliminary breath test reading — that show her client was not legally intoxicated. The basis for the criminal vehicular operation and homicide charges is that the person is impaired by alcohol, she said.

Kallestad argued that there is case law, appeals court and Supreme Court decisions, that show that the possibility of impairment, the presence of injuries or the possibility of negligence have been found to be probable cause, or the legal foundation, for blood-alcohol content testing in criminal vehicular cases.

A male witness who was driving behind the van driven by Stoffers told investigators that he saw both of the headlights of the oncoming pickup, driven by Wickenhauser, in the wrong lane of traffic just before the crash, Kallestad said. Kallestad also noted that Wickenhauser himself told the trooper that his pickup had crossed the centerline of the highway just before the crash.

“What we have here is way more than in those cases,” Kallestad said in reference to the case law, noting that the rulings on criminal vehicular operation or homicide are different than the 0.08 percent requirement in the laws pertaining to driving while impaired.

Koenen testified that he arrived at the scene of the crash within minutes of the incident being reported to county dispatch and found two Kandiyohi County sheriff’s deputies trying to fight the fire that was consuming the van with Stoffers and Michelle Hoffman still inside. He said Wickenhauser was pacing on the roadway, his arms and hands shaking violently, and was identified as the driver of the other vehicle in the crash.

Wickenhauser gave a short statement regarding the crash to the trooper, who then administered the preliminary breath test. Koenen noted that the volume of Wickenhauser’s breath did not reach the volume where the preliminary breath test device automatically captures a reading, so Koenen used the manual capture method, getting the 0.07 percent reading.

The trooper testified that he classified Wickenhauser’s sample as a “light” blow and testified that he knows from his experience as a trooper for 26 years that the blood-alcohol content from such a sample is less than the actual blood-alcohol content identified by further testing, such as blood, urine or breath tests on the advance measuring systems used by law enforcement.

“My opinion was that (Wickenhauser’s blood-alcohol content) was a 0.09 or a 0.10,” Koenen stated during questioning by Kallestad.

Torgerson raised objections, which were overruled by Spilseth, to the trooper’s statements and later questioned him about why in his reports about the incident he did not note any problem, the lesser sample of air, or did not note his suspicion that the blood-alcohol content reading would be higher.

“You didn’t write anything in the police reports that there was anything wrong with the breath test,” Torgerson said.

Spilseth will rule at a later date on the suppression of evidence motion, as well as others filed in the case.

Gretchen Schlosser is the public safety reporter, and writes about agriculture occasionally, for the West Central Tribune. She's been with the Tribune since 2006 and has 17 years of experience working in news, media and communications.